- COMMON LAW MARRIAGES -

(Note: This article was written in 1989. Apart from a few
"dated "references the law has not changed.)

The New York Times of June 26, 1989
reported that Sandra Jennings and actor William Hurt were engaged
in a trial in New York's Supreme Court. It was reported that Ms.
Jennings, who gave birth to a son while living with Mr. Hurt, was
"fighting an uphill battle" in her efforts to prove to
Judge Jacqueline Silberman that she and Hurt had entered into a
"common law" marriage in South Carolina when they lived
together while he was filming the movie, "The Big
Chill" there in 1982 and 1983.1 Ms. Jennings testified that
Mr. Hurt had told her that they had "a spiritual marriage,
that we were married in the eyes of God," during the period
between December 3, 1982, when Mr. Hurt obtained a divorce from
the actress Mary Beth Hurt, and January 10, 1983, when he and Ms.
Jennings left South Carolina to live in New York. According to
the report, Ms. Jennings brought the action to establish a
"common law" marriage after Mr. Hurt's attitude towards
her had cooled off.2

In Jennings v Hurt, the Supreme
Court had previously denied3 Ms. Jennings' application for pendente
lite maintenance without prejudice to her proving her case at
trial, because she had failed to demonstrate a reasonable
probability of success on the merits. The court held that Ms.
Jennings had failed to establish on her motion that she had
contracted a valid common-law marriage in South Carolina with Mr.
Hurt, but granted her the right to try to prove her case at
trial. At that time, the court also denied Ms. Jennings' request
for interim child support for the parties' five-year-old child,
because Mr. Hurt had made tax-free,

voluntary child support payments. The
court also denied Ms. Jennings' request for interim counsel fees,
accountant's and appraiser's fees, holding that the financial
issues had to await a determination that there was a valid
marriage. This trial, which was "Broadcast News"
throughout the country,4 focused on Ms. Jennings' attempt to
prove that there was, in fact, a common-law marriage.

While Sandra Jennings' attempt to
establish a "common law" marriage received much
notoriety because of her lover's popularity and reputation for
his recent performances in the movies, "The Accidental
Tourist" and "Broadcast News", those of us who
recall the music of the 50's were equally impressed by the First
Department decision in Lyman v Lyman,5 which held that the
petitioner, a former singer with "The Platters", had
failed to establish that she and Frank Lyman (whose 1956
recording of "Why Do Fools Fall In Love?" had made him
a recording and performing star) had entered into a common-law
marriage in the State of Pennsylvania in 1965.

Both of these cases raise several
questions about marriage: What is marriage? How is it contracted?
What is a common-law marriage? Is it different from an ordinary
marriage?

The term "common-law marriage"
is a misnomer because it refers to a "law of marriage"
which we supposedly inherited from England when we adopted its
common law on July 4, 1776.6 This is because there was no common
law of marriage in England on July 4, 1776. The early Anglo-Saxon
form of marriage involved a betrothal, by which the bride's
father or relatives agreed to transfer the "mund," or
custody for protection, of the bride to the bridegroom. In return
the bridegroom agreed to make a transfer of property to them, or
make a settlement of property upon the bride, and, in addition,
to care for and protect her. Following the betrothal, the bride's
family delivered the bride to the groom, who made the promised
settlement in return. After the Norman Conquest, the power to
regulate marriage was given to the Church and the ceremony took
place in the presence of a priest. The wedding ring was given as
a pledge that the bridegroom would perform his covenants. The
additional ecclesiastical requirement of thrice publishing the

banns for all church marriages was imposed and marriages had
to be conducted in church and by a priest.7

When the English Reformation transformed
the Roman Church and ecclesiastical establishment into an English
church, the marriage ceremony and the church's requirements did
not change. However, the Church was willing to recognize two
kinds of informal marriage, known as "sponsalia per verba de
praesenti" and "sponsalia per verba de futuro."
The first took place when the parties exchanged promises that
they would be man and wife from that moment on. The second
required an exchange of promises to be man and wife in the
future, followed by sexual intercourse. When the parties
presently took each other as man and wife, a valid marriage was
formed. Consummation was not required. In the case of the promise
to marry in the future, a valid marriage resulted only when the
parties consummated their promise by intercourse.

Until the middle of the eighteenth
century these informal marriages were held valid8 by the
ecclesiastics who had the jurisdiction to determine the validity
of a marriage.

In 1753 Lord Hardwicke's Act9 required a
parish church ceremony in the Church of England, publication of
banns, and a license as a condition to the validity of a
marriage. The purpose of the Act was to prevent clandestine
marriages, "Fleet" marriages and other fraudulent or
irregular marriages. The Act governed

only marriages contracted in England, leaving Scottish and
Irish marriages subject to the earlier rules
allowing informal marriage,10 and did not apply to Quakers and
Jews.

In the American colonies marriage was
regulated by the civil authorities, and informal marriages were
recognized as valid,11 at least in the absence of a statute
requiring a ceremony.12 This enabled parties, such as the
pioneers, to contract valid marriages when there was no clergyman
or civil officer available to perform a ceremony.

English law also recognized several
impediments to the formation of valid informal and formal
marriages. A close relationship between the parties, either by
blood or marriage, was a reason for declaring the marriage
invalid.13 The range of the relationship which disqualified the
parties from marrying was narrowed in the early sixteenth
century, after the Reformation, to the Levitical degrees.14

Infancy was also an impediment to
marriage. Children below the age of seven were incapable of
marrying. After the age of seven they might marry, but the
marriage was voidable until they were able to consummate the
marriage, which the law presumed to be at age fourteen for boys
and twelve for girls. Beyond those ages the marriages were valid,
even though the parties were under the age of twenty-one and did
not have their parents' consent. Later statutes imposed the
requirement of parents' consent.15

The English method of entering into an
informal marriage, known as "sponsalia per verba de
paesenti", was adopted in New York. Its legal definition of
a common-law marriage is an agreement, in words of the present
tense, made by parties competent to marry, to take one another as
husband and wife.16 Ordinarily, common-law marriages are
unlicensed. Cohabitation, repute, holding out, and the like
generally are regarded as bits of evidence which are more or less
cogent in showing that such an agreement, in fact, was made, but
they are not a substitute for or the equivalent of the actual
agreement.17

Common-law marriages were abolished in
New York on April 29, 1933,18 as the result of an amendment to
Section 11 of the Domestic Relations Law,19 which enumerated the
persons by whom marriages must be solemnized.20 Prior to that
date, common-law marriages were generally recognized as valid if
entered into in this state,21 with the exception of the period
between January 1, 1902, and January 1, 1908, when such marriages
were rendered invalid by statute.22

While common-law marriages were abolished
in New York on April 29, 1933, common-law marriages contracted
prior to that date and at a time when such marriages were valid
in New York, are as valid as ceremonial marriages,23 and the long
standing rule of conflicts of law is that recognition will be
given by New York to

a common-law marriage that is valid at the place where it was
contracted.24 Currently, 13 states and the
District of Columbia permit common-law marriages to be entered
into within their borders, although such states differ as to
requirements of proof.25

One of the more curious things about New
York family law is the extreme position our courts have taken in
extending recognition to out-of-state common-law marriages of New
Yorkers.26 Minimum contacts with a common-law marriage state are
sufficient to activate the foreign law, which then may be
construed by our courts to be something different from what it
really is. Some New York decisions have liberally interpreted the
requisites for a valid common-law marriage in another
jurisdiction, and have held that a common-law marriage was
created during a brief visit to a common-law marriage state,
whereas a close scrutiny of that state's law might show that a
court of that state would not have found a common-law marriage
had been contracted there, because the contacts with the
jurisdiction were minimal.

In other American jurisdictions it
generally is held that before a common-law marriage in another
state will be recognized, the local citizens must establish
maximum contacts with such state27 or must have been domiciled
there.28 New York decisions, however, do not require any
significant nexus with the common-law marriage state.

This attitude continues. Several recent
decisions are illustrative. The parties in Cross v Cross29
had cohabited in New York without benefit of clergy, between 1965
and 1983. Until 1979, the man was married to another woman and he
lacked the capacity to marry the plaintiff. Although they
traveled to other jurisdictions, the parties never resided in any
other state. During the years 1979 through 1982 the parties took
a weekend trip to Pennsylvania and a trip involving a two night
stay-over to Washington D.C. The trial court declared that a
common-law marriage existed between the plaintiff and the
defendant, apparently crediting all of the plaintiff's evidence
while totally rejecting the defendant's. It found that the
defendant had introduced plaintiff to the members of her own
family as "my wife Regina" during the weekend in
Washington D.C. and during the trip to Pennsylvania he referred
to her as his wife.

The trial court concluded that although
Washington D.C. followed a more rigid approach, the
"confluence of the Pennsylvania trip, the Washington D.C.
trip and the acts of the parties with respect to the Bar Mitzah
which took place at about the same time, led to the inexorable
conclusion that the parties were married in Pennsylvania and
Washington D.C."

The Appellate Division, First Department,
reversed the order of the trial court holding that under
Washington, D.C. law, where a relationship between a man and a
woman is illicit and meretricious in its inception, it is
presumed to so continue during the cohabitation of the parties,
and that presumption will be rebutted only if the consent of both
the parties capable of entering into a valid contract, is
established by clear and convincing evidence. The Appellate
Division found that the plaintiff, Regina Cross, had failed to
overcome the strong presumption that the relationship remained
illicit and meretricious, nor did she demonstrate "by clear
and convincing evidence, as required by Pennsylvania law, that
the parties agreed to enter into a valid marriage."

In Lyman v Lyman30, the Appellate
Division, First Department, reversed an order of the Surrogate's
Court and found that the petitioner had failed to establish by
clear and convincing evidence that she and the deceased rock n'
roll singer, Frank Lyman, had contracted a valid common-law
marriage in the State of Pennsylvania prior to his marriage to
the respondent-appellant. It found that the petitioner did not
meet the heavy burden of proving that she and Lyman entered into
a valid common-law marriage in Pennsylvania following her divorce
in December, 1965. In the Lyman case, the petitioner's
evidence was that in November, 1963 she

gave birth to Lyman's child. The infant died soon thereafter.
On December 10, 1963 petitioner filed for
divorce from her then husband. Before his time to answer had
expired, petitioner and Lyman took part in a purported civil
marriage in Alexandria, Virginia, on January 23, 1964. On the
application for the Virginia license petitioner indicated that
she was single, although the marriage, in fact, was bigamous as
petitioner's divorce from her prior husband did not become final
until December, 1965. Petitioner conceeded the invalidity of the
Virginia marriage but claimed that she and Lyman thereafter lived
in Pennsylvania as husband and wife giving rise to a valid
common-law marriage recognized in the State of Pennsylvania. In Lyman,
the Appellate Division found that there was substantial evidence
to the contrary which negated the Surrogate's finding that the
petitioner and Lyman lived together as husband and wife in
Philadelphia either before or after December, 1965, when her
first marriage terminated in divorce.

Cross and Lyman, merit
comparison with the Third Department decision in Dozak v Dozak31
where the Appellate Division affirmed an order of the Supreme
Court which found that a common-law marriage did exist between
the parties under Pennsylvania law. The court noted that
plaintiff testified at trial that shortly after her divorce was
finalized, she and the

defendant, while residing together in Pennsylvania, had a
discussion about marriage and exchanged
marriage vows. Specifically, plaintiff testified "well we
just decided that we would from that day on, as far as we were
concerned in our hearts, we were man and wife, and we would
consider ourselves a family and continue thus." Plaintiff
also presented the testimony of a witness who testified that
during the relevant time period, he and plaintiff's sister were
present at the parties' residence in Pennsylvania when plaintiff
announced that she and defendant had exchanged marriage vows with
each other. According to the witness, plaintiff made the
announcement and responded by saying "help me make it
through the night." Defendant denied ever exchanging
marriage vows with plaintiff and testified that he did not recall
the incident referred to.

The Appellate Division, Third Department,
found the plaintiff's testimony to be truthful, and believed it
constituted clear and convincing proof that what began as an
illicit relationship had been converted into a valid marriage by
the parties agreement to be man and wife and to consider
themselves a "family" and continued to be thus. Based
upon this testimony, the court found that plaintiff met her
burden of proof under Pennsylvania law.

In each one of these recent decisions,
the court interpreted the law of Pennsylvania as it applied to
common-law marriages and as it believed the law of that
jurisdiction to be. While local citizens must establish maximum
contact or be domiciled there to establish a common-law marriage,
none of these decisions discusses the length of the contact with
the state, or the domicile of the parties as a significant
factor. In Dozak v Dozak, the New York court found that
the burden of proof had been met by plaintiff, notwithstanding
that the parties thereafter moved to New York. Notably, the
burden of proof under Pennsylvania law is "clear and
convincing evidence".

The final chapter is far from written in Jennings
v Hurt. We note that in its determination on the application
for pendente lite support32, the Supreme Court stated that
under South Carolina law there too must be an agreement for a man
and woman to take each other as husband and wife, and that a
relationship which is illicit in its inception does not
automatically become a common-law marriage once the impediment to
marriage is removed. However, Sandra Jennings' burden of proof
may be easier, because, as the court pointed out, under South
Carolina law "the person claiming the common-law marriage
must prove it by a preponderance of the evidence."

(7) 1, Clark, Law of Domestic
Relations, 69-70 (1988); II Pollock and Maitland, History
of English Law, 370 (1898).

(8) Id. at 368; Canon law on the
Continent was changed by the Council of Trent (1543-1563) to
require that marriage occur in the presence of a priest, but this
had no effect in England.

(9) Lord Hardwicke's Act, 1753, 26 Geo.
II, c. 33. Fleet marriages were performed without formalities, by
disreputable parsons imprisoned in the Fleet Prison. They had
become a public scandal and the desire to eliminate them
influenced the passage of Lord Hardwicke's Act. It was repealed
in 1857.

Laws of 1901, Ch 339, expressly provided
that no marriage claimed to have been contracted on or after the
1st day of January, 1902, within New York state otherwise than as
provided in the article, should be valid for any purposes
whatsoever, and it was held that such provision invalidated
common-law marriages. Pettit v Pettit (1905) 105 App Div
312, 93 NYS 1001. That provision, however, was repealed by the
Laws of 1907, Ch 742, and it was held that common-law marriages
contracted after such repeal were valid. Ziegler v P.
Cassidy's Sons (1917) 220 NY 98, 115 NE 471; Re Hinman
(1911) 147 App Div 452, 131 NYS 861, affd 206 NY 653, 99 NE 1109;
Re Smith's Estate (1911) 74 Misc 11, 133 NYS 730.

See Klienman v. Klienman, NYLJ,
Sep 21, 1973, p 18, cols 1-2 (Nassau Co 1973), where the parties
were divorced, but resumed cohabitation and made a visit to Ohio,
a common-law marriage state. See also, Reda v. Reda (1973,
2d Dept) 41 App Div 2d 848, 342 NYS2d 634, vacated 34 NY2d 716,
356 NYS2d 862, 313 NE2d 341 (brief visit to Florida); and Ventura
v. Ventura (1967) 53 Misc 2d 881, 280 NYS2d 5 which held that
no particular period of cohabitation in Georgia was required by
its laws to effect a common-law marriage. A July 4 weekend trip
by the New Yorkers to Georgia, one night at a motel and two days
with friends, was held to be a sufficient nexus.

Re Estate of Benjamin, (1974) 34
NY2d 27, 355 NYS2d 356, 311 NE2d 495, held that common-law
marriages, although abolished in New York on April 29, 1933, are
valid if contracted in New York by competent parties prior to
that date and remain valid. A subsequent denial of the marriage
or a change of mind by one the parties, said the court does not
invalidate the marriage. The court also held that the party
asserting the common-law marriage has the burden of proof;
although the agreement need not be proved

in any particular way, it may be proved by direct or
circumstantial evidence by documentary
evidence, by cohabitation and reputation as husband and wife,
acknowledgment, declaration, or conduct and the like. Although
cohabitation and holding out to the world as husband and wife
raises a presumption of common-law marriage, the presumption is
rebuttable and may yield to the stronger presumption attaching to
a subsequent ceremonial marriage.

See also, McCullon v. McCullon,
(1978) 96 Misc 2d 962, 410 NYS2d 226, which held that annual
visits to relatives in Pennsylvania effected a common-law
marriage there which New York would recognize. Pennsylvania has
exceedingly strict requirements for effecting a common-law
marriage there and insists upon proof of an exchange of marriage
vows in the present tense.

Mott v. Duncan Petroleum Trans,
(1980) 51 NY2d 289, 434, NYS2d 155, 414 NE2d 657, held that
although a common-law marriage cannot be contracted in New York,
New York will recognize as valid here, a common-law marriage
which is valid where contracted.

The law to be applied by New York in
determining the validity of an out-of-state alleged common-law
marriage, is the law of the State where the marriage occurred.

In that case, the eligibility of claimant
to death benefits as the widow of John Mott, depended upon
whether the parties were married under the law of Georgia. The
Court of Appeals, reviewing the proofs necessary to establish a
common-law marriage, held that while the burden of proving the
existence of such a marriage is on the one asserting its
validity, all that need be shown is that the parties possessed
the ability to contract, that a contract of marriage was made and
that the marriage was consummated according to law. [Ga. Code Ann
53-101] Under Georgia law proof of the existence of a contract of
marriage must include proof of a "present intent to
marry" in the State of Georgia.